Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.

Monday, February 09, 2009

My open letter to Rounder Records on the success of "Raising Sand"

Dear Rounder Records:

1. I would like to congratulate you on the success of "Raising Sand", due to the outstanding musicianship of Robert Plant, Alison Krauss, and producer TBone Burnett.

2. I have always thought of Rounder Records as an "independent" music label, because throughout its history, it has treated Music as being more important than Money, unlike the "major" labels, which are now the "Big 4" cartel.

3. However, I was chagrined to learn from the good folks at RIAARadar.com that Rounder is actually a member of the RIAA.

4. While I am aware that neither Rounder, nor any other RIAA member other than the "Big 4" labels, has participated in the litigation campaign, your dues payments contribute to, and your membership lends legitimacy to, this misguided organization.

5. As I am sure you are aware, the RIAA 5 1/2 years ago began a vicious, mean-spirited war against the good people of this country.

6. This campaign continues unabated, despite false representations by RIAA spokesmen to the press and to Congress that it was ended in August, and that no suits have been commenced since August. Apparently these false representations were made to lull the public into believing that the campaign has ended, and perhaps to divert attention of law enforcement authorities from investigating the illegal tactics of the RIAA investigators.

7. In fact, hundreds of cases have been commenced since August, new cases are being threatened on a daily basis, new lawsuits are being brought, and all pending cases are being prosecuted with increasing vigor, and with rising -- instead of diminished -- settlement demands.

8. Those cases which resulted in money judgments are being turned over to collection lawyers, and the judgments are being assigned by the Big 4 record companies to the RIAA itself, which is acting as their collection agent.

9. Now that you have something wonderful to celebrate, it is time for you to stand up and do something for those less fortunate -- those good people who are caught up in the clutches of the RIAA litigation machine.

10. I call upon you to resign in protest from the RIAA, and to call upon all other RIAA members to do so as well.

11. In doing so, you would be striking a blow for Music, and against Greed.

Thank you.

Sincerely yours,

Ray Beckerman

[Ed. note. If you would like to write to Rounder, their contact info is here.]

5 comments:

Oldphart
said...

Peer Pressure can be an extreme force in personal relationships. In business relationships it can be brutal. Until true reform happens and the Pirates of the RIAA have to become law abiding, they will naturaly intimidate all those who do not have a similar lack of ethics. My hat is off to those Judges that did not bend the law to suit the RIAA. My hopes were that Obama would see how the RIAA has played those in the Justic System over the last 5 years. Now I am utterly disappointed that RIAA bottom feeders have recently been appointed high positions within the Legal System. I am afraid that the foxes have now been put in charge of guarding the chickenhouse.

My hat is off to Rounder Records. I pray they will do what is right and "just say no" to the corruptive influences of the Recording Industry.

I rarely comment on any forum, but felt compelled to here. I wanted to ask the question, isn't the RIAA and other record labels there to make money? In number two you present it as though the label must choose between money and music. If I could recommend, wouldn't it make a more powerful letter if you concentrate on the dishonesty and unethical behavior that the RIAA has consistently displayed? I don't think a business can be self sustaining if it concentrates on greed alone, and thus agree I do agree with you that greed alone is bad for business, but I think it is important for one who is in business to realize that that metric is an important one. So, to present it as an either or forces one to decide greed or money since that metric is so important. That said, since I don't comment often I would like you to know that I have a very high respect for you and the work you do. Thank You.Ben

The major record companies, however, have always demonstrated an excessive interest in money, doing everything in their power to ensure that no one who does business with them gets a fair shake.

I first became aware of their excessive greed early in my career, when I first began looking at recording agreements, and realized that these were full of fictionalizations as to the expenses incurred, which were in place solely to ensure that the recording artist would receive no royalty beyond the advance... or in those rare instances where they did receive a royalty, the amount would be much much less than the supposed royalty rate.

I then learned that it was their common practice to grossly underreport the royalties earned, forcing the artist -- who may be starving -- to hire royalty accountants and legal counsel. And then usually the royalty accounting -- which shows mistakes too large to have been inadvertent -- is "settled" at a sum which is much less than the artist is entitled to, even under the one-sided recording agreement.

I could go on and on with instances of their excessive greed, but of course my blog was engendered by one of those -- their attempt to bottle up the internet.

The reason they are dying is because in their shrunken hearts and weak minds, the music long ago died.

As someone who in the last year has purchased two albums from them with the intent of repurchasing a third once released in the US, I'd like to somehow let them know that not only am I aware of your open letter but also that it has prompted me to undertake a sort of late New Year's resolution that anything I buy from them or any other RIAA label WILL see me make an equal donation to you or other good faith efforts to defend the victims of the RIAA.

At least I have the hope that you will receive more of my PayPal donation than unfortunately I suspect will the artists the RIAA supposedly represents.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove